Transgender Women’s Constitutional Challenge To Sharia Law Fails In Malaysia

Many countries in the Southeast Asian region are incrementally shifting on lesbian, gay, bisexual and transgender (LGBT) people’s rights:
·      Vietnam’s Minster of Justice said publicly that rights of same-sex married couples should be recognized.
·      The Philippines Supreme Court has ruled that an LGBT party had the right to participate in national elections.
·      A Singapore Appeals Court ruled that the constitutionality of Section 377A of its Penal Code needs to be examined because it discriminates against gay men.
·      Thailand has long been known as the place to go for gender reassignment surgery.
·      Indonesia’ s Parliament will soon decide whether to appoint the first openly gay man as commissioner on its National Human Rights Commission.

The Malaysian government however continues to stubbornly reject the rights of LGBT people. This position reverberates throughout state institutions, encouraging hostility, discrimination, and abuse by state and religious authorities.

In October, Judge Siti Mariah Ahmad, of the high court of Seremban in Negeri Sembilan, one of Malaysia’s thirteen states, struck down a first-ever constitutional challenge brought by four Malay transwomen who sought the court’s protection for being unfairly targeted by Article 66 of the Negeri Sembilan sharia law.

Mohammad Juzaili Mohammad Khamis (24), Shukor Jani (25), Wan Fairol Wan Ismail (27), and Adam Shazrul Mohammad Yusoff (25) work as bridal makeup artists, and identify and dress as women. In August 2012, they applied for judicial review of Article 66, which criminalizes men “who dress in women’s clothes and behave like women in public.” They claimed that it violated their rights under the Malaysian federal constitution, which guarantees personal liberty, nondiscrimination, freedom of movement, freedom to express one’s identity, and supersedes any local state law that challenges the federal constitution.

Their lawyer argued that Article 66 was unconstitutional because it penalized individuals for “an attribute of their nature that they did not choose and cannot change.”

Judge Siti Mariah, who heard the arguments in the judicial review, disagreed. In her decision, she said, “The undisputed facts are that the applicants are born as males, they are male to female transsexuals, and the evidence of the psychiatrist is that they have jiwa wanita (soul of a woman)… Section 66 is part of the teaching of Islam and the applicants are Muslims. They cannot be exempted from it.”

PT Foundation, an HIV/AIDS organization in Malaysia, reports there are 10,000 mak nyahs (the local term for male transsexuals), in the country. Seventy to eighty percent of mak nyahs are Malay and Muslim while the remaining twenty percent are minority ethnicities. Most mak nyahs do not have gender reassignment surgery because it’s too costly and requires travel outside the country. They fear too that their families will not carry out the Muslim burial rites if they are not viewed as a man or a woman.

Malaysian rights advocate, Thilaga, working in the Justice for Sisters campaign for the rights of mak nyah, says, “Transgender people don’t report violations by police or religious officers because they don’t expect justice. Often, they don’t know their rights and lack resources to go to court to fight charges.” The four applicants in the Negeri Sembilan case attest to this. Mohammad Juzaili was detained four times in 2010, charged three times, convicted twice and fined 1700 Malaysian ringgit ($550 US); Adam Shazrul was arrested twice, convicted once, and fined 800 ringgit ($260 US); Shukor Jaini and Wan Fairol were each detained twice.

Muslim mak nyahs can face up to six months in prison from Malaysian sharia courts.  They are sometimes forced to attend Islamic religious classes where they are pressured to reform and give verbal assurances that they will stop being trans. They are particularly vulnerable to routine arrest and penalized by police and Islamic religious officers who verbally humiliate, physically and sexually abuse them while in custody.

Non-Muslim mak nyahs, while not subject to sharia laws, can be arrested and convicted for “disorderly or indecent behavior,” with penalties ranging from 25 to 100 ringgit ($10- $30 US) and two weeks to three months in prison.

During the August hearing, Judge Siti Mariah, disturbed by reports of custodial abuse of the applicants, chided the Attorney General’s office: “This is not right, this is not how people should be treated.” She questioned the definition of public space, saying, “the moment they step out of their house, it’s public space,” suggesting that religious officers were using sharia law to target the mak nyah community. She questioned if Article 66 applied to the applicants “because they are not men and they are not impersonating men.”

In her decision last week, Judge Siti Mariah remarked, “The Islamic Religious Department needs to be ‘lebih berhemat’ (more professional),” instructing the Department to work with PT Foundation “to give counseling to transsexuals.”

If we are to better protect the human rights of LGBT people in Malaysia, a far more explicit warning must come from the courts. The Negeri Sembilan Islamic Religious Department should be charged to investigate, prosecute and convict its own religious officers for acts of verbal, physical, mental and sexual abuse against those in their custody, for supposedly breaking morality laws.

Sharia judges across Malaysia must hold accountable Islamic religious officers (and police officers subject to sharia courts) who misuse their authority, take advantage of people’s vulnerabilities, humiliate them, and mistreat with impunity those they are hired to protect—including lesbian, gay, bisexual and transgender people.

For more on mak nyah experiences, see Nisha Ayub’s presentation (pdf) at the International Gay and Lesbian Human rights Commission panel at the 2012 Creating Change conference.

Image via IGLHRC

Guest Author Grace Poore is the Regional Program Coordinator for Asia and the Pacific Islands, at the International Gay and Lesbian Human Rights Commission (IGLHRC).

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